Shepherd v. York District Catholic School Board, 2011 HRTO 1735

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathon Shepherd

Applicant

-and-

York District Catholic School Board

Respondent

DECISION

Adjudicator: David Shannon

Date: September 21, 2011

Citation: 2011 HRTO 1735

Indexed as: Shepherd v. York District Catholic School Board

APPEARANCES

Jonathon Shepherd, Applicant ) Julian Roy, Counsel

York District Catholic School Board, ) John Woon, Counsel

Respondent )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 24, 2009. The underlying Complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 19, 2007.

2The applicant alleges that the respondents discriminated against him on the basis of family status contrary to s. 5 of the Code when he was terminated in his employment as a Student Assistant.

3The applicant submits that he was terminated by the York Catholic District School Board (“Y.C.D.S.B.” or the “Board”) because he was a dedicated advocate for the youth over whom he was the guardian (B.S.). This constant advocacy became a source of irritation to officials with the Board, and by terminating his employment the applicant alleges that the Board discriminated against him based on his family status contrary to section 5 of the Code.

THE FACTS AND EVIDENCE

Employment at St. Joan of Arc

4The applicant was appointed as B.S.’s legal guardian in August 2006. At all material times B.S. lived with the applicant and was in his custody and under a court order not to have any contact with his only biological parent, his mother. The Board, its delegates and the staff at St. Joan of Arc Catholic High School (“St. Joan of Arc”) communicated with the applicant as the legal guardian of B.S.

5On June 20, 2006, the applicant was offered employment as a student support worker with the Board. A letter of employment stipulated the terms of his employment. The applicant’s employment began in September 2006 and was to run for the duration of that school year, up until June 2007. The applicant was contracted through an organization called Bartimaeus, a subcontractor that provided people to the Board who worked as student support workers. The letter established that he was to work as a Student Support Worker and he was placed at St. Joan of Arc by Bartimaeus - this is where B.S. attended school. The applicant was not a member of any CUPE 2331 bargaining unit.

6The applicant testified that he enjoyed a positive working environment when he commenced his employment at St. Joan of Arc.

7B.S. was a troubled youth, who began acting out and receiving numerous suspensions shortly after the school year commenced. The applicant was always contacted with respect to B.S.’s suspensions and he states that he worked to access resources for B.S. that were available at the school and through the Board.

8The applicant alleges he took an active role in B.S.’s education and would consult with teachers about homework assignments and exams to make sure that he could assist B.S. in meeting deadlines. Also, the applicant’s evidence is that the teachers at St. Joan of Arc willingly shared this information with him and in fact many of them sought him out to provide him with regular updates about B.S.’s progress in their classes.

9The respondent School Board denies the allegation that the teachers would so openly seek the applicant’s input regarding B.S.’s program. The evidence from the teachers and school administrators who testified before me was that the relationship was more positive in the early stages but as time went on, they felt that the applicant’s involvement in B.S.’s program was deleterious to B.S.’s progress. The respondent states that the applicant’s advocacy efforts on behalf of B.S. were overly zealous and in a conflict of interest at times.

10The applicant submits that his relationship with the Board began to deteriorate when, in his capacity as the guardian of B.S., he decided to request a review of one of B.S.’s suspensions. The Board argued that the applicant began to confuse his role as service provider and his role as a particular student’s guardian. Officials at St. Joan of Arc testified that the applicant utilized his position at the school to advocate on behalf of B.S. and that he did this throughout the school day, when he ought to have been doing work related to his employment.

11With regard to the applicant’s role regarding B.S.’s suspension, the applicant testified that he followed all policies and protocols of the Board in requesting the suspension review. The applicant and the Board repeatedly exchanged correspondence with respect to this suspension review and it seemed that both sides were unable to come to any mutual agreement about the best approach to assist B.S.’s education.

12The respondent states that the applicant was terminated by the Board not because of poor work performance, but as noted because he was an over-zealous advocate for B.S.. This constant advocacy became a source of irritation to officials and teachers, disrupted them in their attempts to provide educational services to B.S., and consumed time that the applicant ought to have been spending doing work related to his employment with the Board.

13The respondent School Board further submits:

a. The applicant constantly accessed various staff at St. Joan of Arc to advocate on B.S.’s behalf during the school day and without making appointments;

b. The applicant continually visited the classrooms of B.S.’s teachers in order to assess and evaluate B.S.’s work during the school day and without making appointments;

c. The applicant’s interference and demands with respect to B.S. interfered with the ability of staff at St. Joan of Arc to respond effectively to B.S.’s needs and distracted the applicant from the services he was providing on behalf of Bartimaeus in the school;

d. Upon hearing that B.S. was being summoned to the office, the applicant would immediately respond to the call and personally investigate the matter;

e. The applicant would share personal issues with staff of a disturbing nature (for instance violence at home), which made staff at St. Joan of Arc uncomfortable and increasingly fearful of B.S.;

f. The applicant told B.S.’s teachers how he wanted B.S.’s work marked;

g. The applicant called teachers at home with respect to B.S.; and

h. The applicant went directly to special education personnel requesting that a specific teacher work with B.S.

14The applicant testified that he often spoke with B.S.’s teachers and the Vice Principal Lee Venditti throughout the school day, and he was never informed by any of the staff at St. Joan of Arc that they felt his advocacy for B.S. was inappropriate and/or detrimental to his employment. The respondent’s evidence was that such discussions during the school day were initiated by the applicant and on many occasions were not welcomed by the teachers.

15The respondent disagrees that the applicant was not advised that his advocacy efforts were inappropriate. Witnesses from St. Joan of Arc and the Board testified to their serious discomfort with the applicant having such open access to them. They say his employment and presence in the school led to serious conflicts with school administration and staff that could not be reconciled and, therefore, Bartimaeus was asked to reassign him. These conflicts were related to B.S.’s education, his suspensions, and the services the applicant felt should be available.

16The respondent’s concerns about the applicant are summarized in a memo from John Evertman, Supervisor, Behaviour Resource Services dated October 2, 2007 to Allan Mackey, Superintendent of Education, Secondary Schools and John Woon, Legal Counsel, which states as follows:

17In October 2006, the applicant was advised by the Supervisor of Behaviour Resources, that his involvement in [B.S.]’s case was interfering with the school’s ability to provide appropriate services for [B.S.]. The applicant was directed to refer all concerns to Lee Venditti, the school vice principal in regards to [B.S.] He was not to work with [B.S.] or advocate on his behalf, with school staff during working hours while performing the duties of a student support worker. He was requested to follow protocols that would pertain to any parent, i.e., schedule appointments to discuss student progress/concern with vice-principal.

18On or around November 4, 2006, John Evertman, Supervisor of Behaviour Resource Service for the respondent School Board also met with the applicant to advise that some staff members were uncomfortable with the applicant’s behavior and to ensure that the applicant understood that he was not to engage in B.S.’s educational program or to advocate directly with B.S.’s teacher during the school day while he was to be performing work as Student Support Worker contracted by Bartimaeus. Mr. Evertman further advised the applicant that in the event he had any concerns about B.S. he was to contact the Vice Principal, Lee Venditti, and make an appointment for an after school meeting as opposed to interrupting teachers and other staff during the school day. Notwithstanding these discussions and meetings, the applicant continued to actively advocate on B.S.’s behalf, including with teachers and school administrators during school hours.

19On December 20, 2006, the school board held a case conference meeting at which time they informed the applicant that they planned to transfer him to another school for the remainder of the school contract. The applicant was offered another contract position at the Board in the Alternative Education Program. The applicant declined this position as he wished to remain in the same school as B.S. due to scheduling difficulties between B.S. and himself should he be transferred.

20In a letter dated December 22, 2006 from Alan Mackey, Superintendant of Secondary Schools outlining the responses to the applicant’s recommendations submitted in the case conference meeting of December 20, 2006, it was confirmed that the Board was of the view that his placement at St. Joan of Arc constituted a conflict of interest. It stated:

… At this time, we believe that your placement as Student Support Worker at St. Joan of Arc constitutes a conflict of interest. This has been communicated to Bartimaeus.

21The letter also indicated that the school officials would continue to work with the applicant on programming and services for B.S.

On December 22, 2006, the applicant also received a Christmas card from the school Principal with a handwritten note that stated:

Jonathon,

I can’t thank you enough for all the outstanding work you do with our students. May the peace of Christ be with you and [B.S.] during the holy season of advent. You are valued and appreciated. Enjoy the break with the people who are important to you – your family.

Don

The applicant was informed by Bartimaeus on January 4, 2007, that the Board had terminated his contract but that it may consider bringing him back in September of 2007. This did not happen.

Analysis and Decision

22The Code explicitly prohibits discrimination in the workplace based on family status by stating at section 5 the following:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

23The parties did not dispute that the Tribunal has jurisdiction to consider the applicant’s allegations of discrimination pursuant to s.5 of the Code.

24The applicant must prove on a balance of probabilities that the respondents discriminated against him based on his family status. I find that the applicant has not been able to demonstrate that he was discriminated against based on family status.

25While I appreciate that the applicant felt compelled to provide parental support and advocacy for a child who had behavioural difficulties that made him vulnerable, there is not a clear link between his family status and the respondents decision to transfer him to another school. The applicant used time when he was being paid to provide work as a student support worker to interfere with B.Ss educational programming. The respondent advised him that this was an inappropriate time and manner to advocate on behalf of B.S.. The applicant was also advised that teachers were uncomfortable with his interference during class time, and his mixing work time with parental advocacy was a conflict of interest. Notwithstanding these requests to advocate for B.S. by appointment and after school hours the applicant continued to interfere during this time and did not make appointments for parent teacher meetings.

26The applicant was also offered a position at another school, which he declined to accept. The applicant indicated that working at a school was impractical for his schedule as a guardian, however the Code does not confer a duty on the part of the School Board to accommodate the care arrangements for the applicant in these circumstances. See: Ontario (Human Rights Commission v. Ontario (No. 2) (1998), 1998 CanLII 29885 (ON HRT), 33 C.H.R.R. D/191 at para 295 where dismissal for refusing to return to work due to inability to get space in a specific daycare was found not to be discrimination on the basis of family status.

27The applicant led evidence to indicate that his skills as an educational assistant were greatly appreciated. The Christmas card from the school principal indeed noted that he was valued by the school. That is probably true, and their offer to place the applicant at another school would support this conclusion. There is a distinction between the respondents understanding that the applicant was a good employee and their concerns respecting his conduct as a parent during school time. The two roles were not reconciled despite meetings, memos, letters and other attempts to resolve the problem.

28The applicant must demonstrate that, based on his family status, the respondents treated him in a manner that caused him disadvantage resulting in discrimination within the meaning of the Code. For the reasons stated above, I find that the evidence does not sufficiently connect the alleged mistreatment of the applicant with his family status.

29Accordingly, the Application is dismissed.